Here's the best value of Part 15's rewrite: FAR's past performance

Dec 15, 1997

Two areas in the new, yet unchanged, coverage bear special mention: "Best value" is abolished as a unique concept and renamed; and "past performance" tries to make the best of a bad law. FAR 15 also has a secret code, but more on that later.

You have to wonder why the drafters at the Office of Federal Procurement Policy considered throwing the concept of best value overboard and replacing it with something called tradeoffs. Under the old ways of doing business, best-value was the process by which the agency could make the source selection decision on a basis other than cost exclusively. Now the best value process has been renamed--but not re-engineered--as the tradeoff process. Can anyone guess why?

Simple: Everyone wanted to characterize their acquisitions as best value and avoid the hard work of writing evaluation plans, deciding what was really important, grading proposals and conducting discussions. So the obvious answer was to make all negotiated acquisitions best value, including those for which the only discriminating criterion is price.

It's even defined that way: " 'Best value' means the expected outcome of an acquisition that, in the government's estimation, provides the greatest overall benefit in response to the requirement." Given that the constraints of cost, schedule and performance haven't changed, could you imagine someone suggesting, "Let's not get the greatest overall benefit"? Ah, the joys of tautology-speak!

Now we turn to that perennial nemesis, past performance. The problem is not what to do with it, but what to do when an offerer is without it.

The rewrite adds a requirement that will drive solicitation writers bonkers. It tells buyers to describe how they evaluate offerers with no past performance history. It literally says, "Describe how you will evaluate information which is not there."

This is not as easy as it may seem. You see, when you are "comparatively assessing" information that is absent, it is difficult not to evaluate the offerer to which the noninformation pertains unfavorably. In fact, one might successfully argue that it's impossible. But that's precisely what the law requires.

One shouldn't go around interpreting laws as being absurd unless, of course, there's no other choice. Here, there is no other choice. So what do you do? Do your darnedest to assure that every offerer has something in its history that looks like past performance so the issue never comes up.

The FAR admonishes folks to look at predecessor companies, key personnel and subcontractors when assessing past performance. Don't worry about relevancy; it's all relevant, although some to a greater degree than the rest.

In any event, all offerers will have at least one piece of past performance information that is somehow relevant, and that's all you need. A popular alternative, ignoring the past performance of all other offerers when one of them has none, is just too horrible to contemplate. Not to mention dumb.

Well, the code isn't all that secret, but it takes breaking--which no one will ever take the time to do, so it might as well be secret. Hint: It's in the numbering system. The FAR rewrite will virtually wipe out agency implementing and supplementing coverage because it will have to be renumbered and republished. That's too difficult.

For the Defense Department, for example, don't look for four-step source selection procedures. It probably won't be there. Multiple best-and-final offers? There are no such things as single BAFOs anymore. How about requests for multiple final proposal revisions? No problem--no coverage.

To assure real confusion and foreclose preemptive strikes by forward-thinking agencies, the numbers were changed twice. The rationale was ease of readability, as if someone reads the FAR straight through. We know the real reason. Don't we?

Bob Little, an attorney who has worked for the General Accounting Office and a Washington law firm, teaches federal contract law.